12/17/2018

Two Unanticipated Consequences of Straying from Original Meaning: Self-Pardons and Treating Taxes Like Excessive FinesAndrew Hyman

Can incumbent presidents be indicted? The Office of Legal Counsel has long answered in the negative. Here’s how that office persuasively reasoned in the year 2000:

The Impeachment Judgment Clause provides:

Judgment in Cases of Impeachment shall not extend further than to removal from Office, and disqualification to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicted shall nevertheless be liable and subject to Indictment, Trial, Judgment and Punishment, according to Law.

U.S. Const. art. I, § 3, cl. 7. The textual argument that the criminal prosecution of a person subject to removal by impeachment may not precede conviction by the Senate arises from the reference to the "Party convicted" being liable for "Indictment, Trial, Judgment and Punishment." This textual argument draws support from Alexander Hamilton's discussion of this Clause in The Federalist Nos. 65, 69, and 77, in which he explained that an offender would still be liable to criminal prosecution in the ordinary course of the law after removal by way of impeachment.

Indeed, in Federalist 69 and 77, Alexander Hamilton was clear about the president not being indictable. And here’s the thing: those exact same passages by Hamilton are equally clear that the president cannot pardon himself either. If people now abandon the idea that the president cannot be indicted, they are inadvertently abandoning the idea that the president cannot pardon himself. Such are the wages of abandoning originalism.

It is true that independent prosecutors in the past have sometimes concluded that a sitting president is indictable. However, relying upon the 25th Amendment (ratified in 1967) to determine the meaning of what was ratified in 1789 but never subsequently amended, is not an originalist argument. The “generally held view” is correct: sitting presidents cannot be indicted, and they have to first be impeached and convicted by the Senate. My prediction is that any attempt to indict a sitting president will quickly lead to a self-pardon, and both things would conflict with the original meaning of the Constitution.

Another example of non-originalism potentially backfiring involves the current litigation to incorporate the Excessive Fines Clause against the states. In view of the U.S. Supreme Court’s non-originalist opinion in NFIB v. Sebelius (regarding the constitutionality of the Affordable Care Act), fines are somewhat interchangeable with taxes. I predict that, if the Excessive Fines Clause is incorporated against the states, and NFIB is not rendered obsolete, then eventually federal courts will start striking down state (not to mention federal) taxes as excessive. In other words, the day is probably approaching when a tax will be construed as a fine levied for the offense of having more money than the government wants you to have, and the fine will be struck down under the Excessive Fines Clause.